기업회생법상 부인권의 입법연혁과 전망

Abstract

Negation right in corporate rehabilitation proceeding means the custodian retroactively negates the effectiveness of the act once rehabilit- ation process began, which strongly affects the business counterpart. Although negation right is very important in “Debtor Rehabilitation and Bankruptcy Act”(DRBA, hrerunder), the specific contents of it are still controversy today when it has been 10 years since DRBA enacted. So, the objective of this thesis is to study the historical formation of negation right in corporate rehabilitation act and present my own view on its future outlook. First of all, it adopted Japanese Corporate Reorganization Act in Old Corporate Reorganization Act on December, 12, 1962, Later, DRBA was established in 2005, but there hasn't been much changes since the Old Corporate Reorganization Act was enacted 53 years ago as it just copied the Old Corporate Reorganization Act. Therefore, it is essential for us to give a second thought over the overall negation right in Corporate Rehabilitation Act. We have to consider that enforcing the negation right can be used randomly in Civil Law, and it can also be used to damage business counterpart which contradicts the principle of trust and good faith. On the contrary, the regulation that limits the negation right such as limiting the claim rights of collecting taxes on the basis of the National Tax Collection Act and Local Tax Fundamental Act must be revised as it violates the principle of equality among creditors. On top of that, negation right is to allow custodian to nullify the improper transactions which contradicts the principle of equality and fairness among creditors. Accordingly, it is important to note that targets are not all transactions but for those which are unfair and inequal which means that negation right corrects some parts of existing transaction practices not the whole business relations. From this view point, negation right must be accompanied by existing transaction relations and guarantee vested rights. Furthermore, although there has been controversy over the matter whether exercising the security right can be the object of negation right, we need to create new law that combines security right in Civil Law with negation right in DRBA. Lastly, DRBA includes negation right and at the same time it, exceptionally, allows the person who is both debtor and creditor to offset debts against credits on the basis of equality principle. However, it is common notion that custodians are not allowed to exercise their negation right. We have to present reasonable standard for this matter on the basis of law if not resolving in terms of interpretation.